October 31, 2007

Shorter 4 Top Lawyers: To Hell with the Courts

by emptywheel

Here's the letter from Ashcroft, Comey, Goldsmith, and Philbin that came up so often in today's SJC hearing. The key graf is this one, in which four top lawyers say, "to hell with the Courts, we've got two branches plus Cheney, who needs a third?"

Finally, we note that we are familiar with the legal analysis conducted within the Executive Branch of intelligence activities allegedly connected to the lawsuits against telecommunications carriers and with debates within the Executive Branch about that analysis. Given our experiences, we can certainly understand that reasonable people may question and wish to probe the legal bases for such intelligence activities. We firmly believe, however, that the best place for that examination and debate is not in a public lawsuit against private companies that were asked to assist their Nation, but within the Executive branch, where intelligence-gathering decisions are made, and in joint efforts between the Executive Branch·and Congress to ensure appropriate oversight.

The paragraph pretty much says it all. It comes as close as they ever do to saying, "you've got to listen to use because we're the four people who objected to the illegalities of this program in the first place." Elsewhere, they don't acknowledge why a letter from these four people might carry such weight.

But then, in their solution, they say, "to hell with the Courts. We've got the Executive branch and Congress"--which thus far have proved unable to "probe the legal bases for such intelligence activities" much less something they don't mention, "hold those accountable who broke the law."

Which seems to me, at least, as a really nice way of saying, no, trust us, we started this, we assure you it'll get taken care of.

Update: See Stoller for Ashcroft's financial conflicts of interest in writing this letter, and Big Tent Dem for the conflict of interest of the bigwigs who wrote the WSJ article cited so commonly in today's hearing.

Hey bigwig lawyer types: when you're being paid to say something, it makes what you say a whole lot less credible.

Comments

EW, do they elucidate on what would constitute appropriate oversight? Since all of the oversight we have seen from this Congress has been utterly without any consequences, and since the FISA revisions are supposed to solve all of our problems well into the future, what assurance do our 4 Top Lawyers gives us that oversight would carry with it real consequences if violations of the law are found? I'm betting zero.

Also, as you noted with Jane Harman, this letter smacks of being a very self-serving CYA conflict of interest kind of thing. If Mary is right in her earlier comments that these 4 did NOT object to the program until they felt they themselves would be subject to legal jeopardy, then having these 4 writing to Congress telling them to keep enforcement out of the courts seems to me an attempt to keep themselves out of court.

So we're supposed to give the private companies immunity for their actions in the past, which these guys allowed (or at least didn't much object to until they were forced to do so), *and* give up our right to sue them for their illegal actions?

Jeebus, can someone send these guys back to law school? They seem to have missed constitutional law, or something.

I object to being 'reasonable'. (Is that a code word now, like 'bipartisan'?) I'm going to be unreasonable and expect the governmetn to obey the laws as they expect me to do.

Phred, IANAL but your comment above ("then having these 4 writing to Congress telling them to keep enforcement out of the courts seems to me an attempt to keep themselves out of court") made a bell go off in my head. Since these guys have been advocating side-stepping parts of the legal system (not to mention major provisions of the Constitution) could they face major sanctions by their respective bar associations? In other words, could they be disbarred?

The way all of this is shaping up, this entire administration is in favor of scrapping the Constitution and just doing as it pleases...

sojourner - IANAL either, so I can't answer your question, but I would imagine if legal misconduct can be proved, they could be disbarred. I'm sure Mary, bmaz, cboldt, or any of the other lawyers around here could clear this up for us.

And as Mary has pointed out repeatedly, these 4 conservative lawyers don't take exception to the unitary executive, which is why one wonders what it was specifically that caused them all to cough up a hairball in March '04.

Well, hell damn and drat. I am very sorry to read that. From three of them I didn't expect better, but I am sorry about Comey.

As Feingold said today, and asked his colleagues to note, Wainstein was effectively asking citizens to accept that the executive branch would do its own oversight, and these four seem to sign on to that logic. What moved me most in that hearing today, though, was Durbin's point: Why is it patriotic only when the telecoms respond to administration requests? Why is it not patriotic of the telecoms to keep in mind the interests of the citizens they have contracts with? Why is patriotism never summoned up as the justification when the liberty of citizens is at stake?

This drives me bananas, and I'm a Canadian. I can't get over all these nice young American men who've bought into the war on terror as an excuse for ... well, way too much.

They can't be disbarred for sending to Congress their opinion on how something that is a quirky carve out, like "foreign surveillance" should be addressed.

What they can be disbarred for is violating a court order, whether they did it for their fearless leader or not. All of which goes back to my original premise that it was not so much love of law, as fear of consequences, that was a motivator for all of them back in '04.

I find it just absolutely fascinating that, during the same period of time as the so-called "revolt" there has been public report by Leonig in WaPo that "firewalls" at FISCA (which I pretty much have to believe were in the nature of Court Orders) were being violated and that the FISC Chief Justice was threatening Ashcroft and that her threats "shut down" the program, yet no one on the committees ever asks anything about this. And no one even bothers to ask if we should really believe that the program was "shut down" twice, once over the Palace Revolt and once over the Chief Judge's ojbections, or whether the program was really shut down NEVER, bc it continued with Gonzales giving his approval as WH Counsel - a very weird kind of approval.

Durbin seemed to ask about the "good faith" issues given that one telecom opted out, but no one asked about good faith issues for the period of time when there as no AG signature, or whether or not the telecoms had been advised that the FISA Chief Judges, both of them, thought the program was illegal. It would certainly impact the Govt and President's "good faith" to not pass that info along to the telecoms and it would also impact the good faith of telecoms if they knew of it and went forward anyway.

Then there's the "good faith" issue after the rulings by Taylor and Walker. Or the "good faith" issue when the President described to Americans that the programs was ONLY an "if al-Qaeda is calling" program.

The truth of the matter is, the only branch that scares the lawyers is the judicial branch (hence the desparation of Comey, Philbin, Goldmsith et al to get Haynes on the bench). Congress has shown that it is not worth having as a branch of govt. I'm still very sure that the people who were so happy to bring us the torture and abuse and depravity that this same crew was willing to offer up while they were in office, and who were so willing to sit on so much to make sure Bush continued in office and their own crimes would get more cover, had to have had some hammer pounding down that caused them to suddenly act like lawyers.

The fact that the Arar lawsuit had been recently filed might have been a bit of a hammer right there. One thing to blithely sign off on torture, something else to have an ally government rescue their national from your conspired torture and to need to look him in the face and claim valid your arguments to conspire to have him tortured and to continue to have him defiled. To have your children see in his children's eyes just what you really are.

I don't know the motivations, but without regard to charm, these aren't good men. They gave up their claim to that four letter word a long long time ago.

In some ways, I can very strongly relate to what is probably their sense that they helped create this situation and it is up to them to get "their" people out, as unschathed as possible. It is a part of what angered me so about the programs to start with - none of the lawyers or agency heads (be it Ashcroft, Tenet, Hayden, Thompson, Yoo, Bybee, etc.) seemed to have any care or concern for protecting the people they involved in the process. They did help create it and you can see how strongly they have an "our people" v. "outsiders" approach. A fine thing in a friendship and a deplorable thing in a prosecutor or agent of democratic government.

To be honest, my reaction as all the revelations began to come out, years ago now, was that it would not be a good thing to have people who were trying to do the right thing caught in the crossfire. Of course, that a) presupposed crossfire, and b) presupposed people trying to do the right thing.

Having discovered both are invalid assumptions, I don't really have that much concern left in me on the "what happens to" whomever front. People who were willing to continue in all this without coming truthfully and openly and apologetically forward aren't people who were trying to do the right thing. Going to bed every night knowing the horrors you were actively involved in visiting upon all kinds of people, including children, including kidnapped children used for torture leverage --- and never ever ever ever ever ever backing away from it --- good people don't do that.

So what greatly worried me once - the good people caught up in things beyond their control scenario - doesn't really tug at me much after the years have gone by. OTOH, that doesn't matter either, bc what we have learned, in the end, is that there is never going to be accountability. Evil just wins and walks away.

We have such a need to believe in heroes. When some of these men stood up for something we believe in, we think that they must share other of our values. They don't. Put simply, no one with any integrity would be caught dead working for this Administration. George Bush is the worst President in our history. They can't have worked for him without noticing this or without buying into much of what this worst of all Presidents represents. They signed off on and enabled much that was deeply antithetical to the Constitution because they thought it could be finessed as a matter of law. They aren't heroes. They just aren't quite as bad as Gonzales, Addington, and Yoo.

It's swell that they "firmly believe" that, and ever so nice of them to tell us. The wonderful thing about democracy, however, is that we ALL get to have opinions and help decide, and frankly, I don't give their opinion much weight. Perhaps, if they'd done more to ensure that the examination and debate they speak of actually took place with Congress, I might feel differently.

Besides, the point of the lawsuits isn't just to provide a place for examination and debate, it is to address alleged wrongful acts of the companies involved.

"holding those who broke the law accountable" what a concept. Harman , DiFi and others so intent on protecting these telecom companies (both US and Israeli based communication companies involved in the wiretapping and data mining)

How can they possibly wonder why only 11% of the American people have any faith in congress?

The fact remains, however, that carriers are facing years of expensive litigation and potentially ruinous damages based upon allegations of their involvement in an intelligence program authorized by the President, reviewed for legality at the highest levels of the Executive Branch, and represented to the carriers to be lawful.

Perhaps there is something I am missing here but the telecoms signed on to the program accepting the legal representations that Ashcroft, Comey Goldsmith, and Philbin themselves rejected. Now if they rejected them why didn’t the legal departments of the telecoms? The telecoms had a straightforward interest in ascertaining if the government’s legal rationale was reasonable on its face. Just because the “highest levels of the Executive Branch” say it’s so doesn’t make it so. They also had legal responsibilities to their customers and fiduciary ones to their investors. The fact that Qwest and the 4 lawyers all had problems with the government’s original case creates doubts about the whole “good faith” argument. If they could know better, then so should the rest of the telecoms.

None of this addresses, of course, the issue of why the telecoms, after the immediate emergency of 9/11 had passed, did not ask for a validating court order or why the government did not seek correcting legislation. They had 6 years after all in which to act. They chose not to. “Good faith” only extends so far and is fundamentally not the same as the “See no evil, hear no evil, speak no evil” attitude of the telecoms.

We believe that the carrier immunity provision not only provides a just and fair protection for companies that allegedly responded to a call for assistance from the President in a time of national crisis, but also is a necessary policy for promoting the national security interests of the United States.

Six years of unrelenting and unsupervised lawbreaking gets condensed into the disingenuous in a time of national crisis and a program dubbed and drubbed illegal and which the Four Heroes themselves say is going to give rise to "ruinous" damages is quaintly referenced as a "call to assistance."

That pretty much shows where their hearts and minds are, without going any further.

The text of the letter shows that God has a sense of humor - just try to follow from this:

Beyond the existence of an intelligence program
involving electronic surveillance, which the President has confirmed, we cannot, of course,confirm anything further in this letter, including whether or not any telecommunications carriers
even participated in such a program.

to this:The fact remains, however, that carriers are facing years of expensive litigation and potentially ruinous damages based upon allegations of their involvement in an intelligence program authorized by the President, reviewed for legality at the highest levels of the Executive Branch, and represented to the carriers to be lawful.

What's that again? It's really all just farce now.

So they ask Congress to "save" what it can't have described to it - to provide immunity without hearing about the crime from the criminal.

To argue for a plea bargain, without requiring an allocution from the criminal.

Hugh - you've got it very right. I'd love to see a hero now and then and my standards aren't really all that high. Winning's not required, just trying.

Mary (or anyone), answer me this: Do these guys really believe that they are living in "a time of national crisis" that seems to have no time limits? Do they? Or are they just thinking as the lawyerly branch of the elites, as cboldt says?

The letter's quoted paragraph in EW's post, and some others, sounds remarkably like Patrick Philbin's (brief, and just about as quickly discredited) testimony today to the SJC. I wonder if he drafted the language of that letter, or at least that paragraph (Kirkland & Ellis, LLP, where Philbin is a partner, faxed the letter over to the Senate).

Morton Halperin of the Open Society Institute did a great job of quickly rebutting Philbin's position (and thus the points in this letter), and making him look rather foolish, actually, during Halperin's immediately-subsequent testimony. Dianne Feinstein even managed to effectively rebut one of Philbin's core points as well. I don't know where all the other Senators besides Feinstein (sitting in for Leahy) and Specter disappeared to, when that panel showed up; not one other Senator waited to ask questions of the non-administration witnesses who were most likely to speak up on behalf of our Fourth Amendment protections - which are now on the verge of extinction, thanks to the blind spots of the Executive and Legislative Branches, neither of which can seem to see beyond Articles I & II of that 'piece of paper'...

Mary, I have always enjoyed reading your posts here, and, as usual, you are right on target with my own feelings.

Hugh, you started in on something that I have been wondering about, and I am going to carry it a little further. The basic premise for all law in this country has been the Constitution. On one hand, we have an executive branch that is ready to destroy it to suit its own purposes under the guise of "national emergency." That in itself is pretty distressing,

But, carrying it further, the telecoms have hundreds and hundreds of attorneys on staff, and I am sure they have hired lots of outside legal counsel. They all have to be very familiar with what the Constitution says. Where I am going is that whatever legal advice they gave to management when their respective employers were asked to participate in the program without warrants or signed orders was ignored (provided that they were even asked for an opinion in the first place). How would you get hundreds and hundreds of attorneys to ignore the law -- particularly to put their employers or clients at major risk? This just does not make sense at all!

I have to wonder if the decisions to participate were made by senior management, without benefit of counsel, and based on the Cheney 100-year unitary executive theory (i.e. -- they would never have to pay the piper). Since everything has come unraveled and been exposed, though, there are a lot of management types who have their respect butts hanging out -- and their companies at major risk -- without the retroactive immunity. If my theory is even somewhat true, there are going to be some majorly pissed shareholders!

This also ties in with something I brought up a couple of weeks ago -- by allowing AT&T to regain its former throne, fewer people had to be involved in the decisions, so fewer people knew... I wonder who Bush and Cheney know at AT&T who is getting real nervous about now?

I wonder how difficult it would be to find out how much money the telecoms have contributed to individual senators and representatives, and start a campaign admonishing them to recuse themselves from voting if they have been recipients? It sounds good in theory...

To hell with being nice about it -- it is time to start calling a spade a spade...

skdadl -- Just my opinion, but I think these guys are so pumped up from constant reinforcement of their beliefs that they probably think that they can walk on water. My rectum puckers up every time I read stories paralleling Nazi Germany to this administration -- and they are the good soldiers, just following orders -- misguided that they may be.

skdadl - the law recognizes defenses to some actions based on "exigent circumstances." So, for example, it is a criminal act for me to steal your boat. But, if you are gone and I am sitting in NOLA watching waters rise, there becomes a point at which I have a valid defense to the crime of theft if I take your boat. It doesn't "make it legal" to steal it, but it does provide a defense to prosecution. Along the same lines as self defense as a defense to murder, bc of the imminent threat exigencies.

They know very good and well that they are arguing it was "ok" to break the law and so they cling to the Executive Branch version of exigent circumstances - "national security" But they know that it is 100% disingenuous to claim that an ongoing state of unrelenting national crisis prevented them from asking for changes to the law that would have made the program legal. As a matter of fact, the Patriot Act was spit out pretty damn fast.

So they will of course continue to argue this ongoing state of crisis bc it is the best defense for the action, but it never really addressed the fact that nothing about the "crisis" prevented the Executive Branch from being able to ask Congress to change the law. It just didn't.

So back to the boat scenario. Let's say we live on a river that could flood any time and you have this nifty little boat. The river begins to flood, you aren't there, I take the boat, then as the river subsides, and while you are around to ask, I just keep taking the boat without ever asking you. Six years after the flood, can I still claim exigencies as a defense to my continued takings?

Course not - they know better. But they also know that "national security" has been the "stay the course" mantra of DOJ and that it keeps working. So like a kid who has gotten by with the "dog ate my homework" excuse every time he's used it, they'll keep using it until it quits working.

There is a point to be made that, while Congress was basically under attack and not operable to address the situation timely, the President might have exceptional powers or more narrowly, might have legal defenses to usurpations of power not specifically granted to him by the Constitution - just as there is a case to be made for the imposition of martial law against a citizenry in some settings. However, just as the Court in Milligan found that, you can't claim battlefield exigences to use martial law when the civilian courts are open and operating, I think it is equally clear that you can't claim the exigencies of having to break the law because you couldn't get around to asking Congress to revise it when Congress has been sitting and revising laws at your request for years is just - well, it's where you look in the mirror and don't recognize the person looking back.

Let me make all that shorter: When the national crisis is not so severe that institutions of government and law shut down (literally or figuratively), you can't claim "national crisis" as a defense to ignoring Congress and the Courts and covertly breaking the law for years.

Mary -- I like all of your comments, but I think yours at 19:15 is particularly outstanding and I could not agree more.

I find it particularly galling that the letter essentially justifies the conduct of the telcos as being a proper act of fealty to the King's command as expressed in this sentence:

"When corporations are asked to assist the intelligence
community based on a program authorized by the President himself and based on assurances that
the program has been determined to be lawful at the highest levels of the Executive Branch, they
should be able to rely 'ln those representations and accept the determinations of the Government
as to the legality of their actions."

I sincerely wish that one of the Senators today had strenuously pointed out that the President's word is NOT law. The Constitution is the law. We are a nation of laws, not men. That sort of thing. But no, people take this, "because W said so" crap at face value. Our Congress is an embarrassment. And the pathetic attendance at the second portion of the panel today just goes to show that Congress has no interest in truly fixing this mess. For that matter, why didn't they call some Constitutional scholars to testify, huh? Right, I forgot, hearings are led by the Congress you have, not the Congress you want.

In his testimony today, Philbin was much narrower than the letter he signed with Comey, et al. In his statement to the SJC, he said several times that the President has the inherent authority to authorize the TSP AND that only the Executive Branch could review it. He didn't say anything about Congressional participation, at least that I heard.

The letter refers to 'joint efforts between the Executive Branch·and Congress to ensure appropriate oversight,' which we now know means Cheney telling the Cowering Gang of 8 how it's going to be, and then telling them they can't tell anyone about it, either.

What Philbin said makes logical sense only if the listener assumes the UE Rationale is valid.

I haven't heard anything from Comey, Goldsmith or Ashcroft that says they disagree with the UE Rationale - they seem only to be having issues with the implementation of it.

Wainstein, same thing - totally on-board with the UE - all of his opinions follow from that assumption. In his testimony to the SJC today, he said several times that the Telecoms were assured by Bush that the program was Legal, so now we can't hold the Telecoms liable. It's a fairness issue, he said - he used the 'we indemnify the people who help at the scene of an accident against liability' metaphor. In this case, the President called them to the flag on 911 and they responded patriotically - we should hold them harmless for their patriotism.

So, Bush and his Legal Henchpeople - Article 2, AUMF and 47 Consecutive Decided-by-Bush National Emergency Declarations in hand - are saying that Bush is In Fact operating as the UE. Right now. Ever since 912. He has the full Above the Law powers - what we would know as a King and his (Executive Branch Only) Court. He's unchecked and unbalanced (heh) except, hypothetically, he could be pleadingly persuaded by the direct reports in his own Branch, where the prized quality is Loyalty - something like, "Out of the goodness of your heart Mr. Bush, could you please put the Program under FISA/C?"

Of course, they can't tell US that - the Above-the-Law UE/4th Branch is a State Secret - so, we are left to puzzle over non-sensical logic for dancing around the seemingly un-Constitutional collateral damage done by extra-legal programs that we can't know anything about.

Bush and Cheney would call Impeachment an act of Dis-Loyalty - they wouldn't recognize its authority over them while they are acting as the UE. That's why Bush is repeating ad nauseum these days that 'Congress isn't doing its job' - he's getting ready to by-pass them alltogether.

It's looking more and more all the time like a successful covert coup d'etat...they didn't just stumble into this.

The really twisted part of all this bad logic, imvho, is - if you are Not A Member of the 4th Branch, then you are 'assumed' a possible 'enemy' - so, you must be surveilled. Even if you are a Congressperson or a Senator - if you aren't in the 4th Branch - you can't be trusted to be truly Loyal. Bush has Almost completed importing the foreign 'less-than-probable-cause' - the Suspicion Standard - to US Citizens in the homeland.

What happens next? Like someone said earlier on one of the threads today - without an action plan to restore Democracy as we know it, H.R. 1955 is next.

If the telcos believed they had authorization to spy on us, I wonder why haven't they filed a third-party indemnification suit against the government. That would force the government to prove that its demands were lawful. I know bmaz has regularly argued that the US is on the hook for indemnification, but I wasn't quite so sure until I saw this in the live blogging, a question from Senator Feinstein:

Immunity and exclusivity provisions. I’d like to urge you to read the additional views of me, Snowe, and Hagel. I’m not satisfied with this bill. It does have loopholes. It is my belief that Administration exceeded its authority in terrorist surveillance. This has happened before. If we don’t learn from our mistakes. I am concerned about use of presidential authority. President has claimed AUMF. There was no Congressional intent that it be used for this purpose. I believe the initial part of the terrorist surveillance program was illegal. I want to prevent loopholes. With my belief that Admin proceeded illegally, I’m aware that Exec assured companies, those assurances may have been wrong. These were the assurances that the companies were given. I understand tenor within the country. Letter dated October 29, signed by Ashcroft, Comey, Philbin, and Goldsmith makes this comment. When corporations are asked to assist intell, based on assurances that program determined to be lawful. Should be able to rely on those representations. But. The question arises whether the situation can’t be better handled. I wonder how the Admin would feel about capping of damages at low level. Indemnification: It’s a problem when you say the taxpayers should pick this up. It’s not the taxpayers who did this, it’s the Administration. Why not indemnification and a cap.

I'm laying down my Queen. The Four Top Lawyers have pushed me over the edge.

Been holding out, the as the world's leading optimist, for a explanation, a clear and rock-solid narrative that would reveal the true nature of the actors in this horror story and that some of the hapless thespians, even a very few, maybe even just one or two, would be revealed as "heroes who tried to do the right thing".

In re: the 4th branch of government... How is it that we, as humble citizens, have been taught from birth that our Constitution rules everything...that there are three branches of government, with checks and balances on each. How is it that we have been assured time and again of our 'personal' freedoms and liberties and rights, and this president, with the help of his trusty, deranged veep, manages to totally disarm every control that has been installed over two hundred years and dismantle our government?

Has there always been this fourth branch, but we just didn't know about it? It is like someone, twenty years ago, began creating "sleeper cells" of UE theorists, and when Cheney got some power, they all awoke and began marching like zombies, heedless of what they were doing, throwing any good sense to the wind.

I read it as: if the President authorizes it, then it's legal. If we don't accept it as being legal, then corporations who operated in an illegal way will be forced to suffer the legal consequences of their illegal actions. And if they have to answer for their illegalities then no other company will want to engage in illegal activities again on the whims of the executive.

So, we mush make legal what was illegal so that the Executive branch can engage in possibly more illegal activities and be free to induce other parties to join it in its illegal activities with the foreknowledge that they have been immunized from ever being held to account for their illegal activities. If this is true, then we might as well send Congress home and save our money. We no longer have a unitary executive. We have a monarch. And Congress is fine with that. Send them home.

All along, I thought that the point of Watergate was that we are a nation of laws and that even Presidents can be found to have broken the law and can be brought to justice for their law-breaking.

The legislative branch is on the threshold of agreeing that "it's not illegal if the President does it."

What has happened to the men and women of this Congress? What is wrong with the people that we recently elected to Congress to defend the Constitution from usurpation and to defend this great nation from lawlessness in the highest levels of our government? A government that is supposedly of, by and for the people.

We have such a need to believe in heroes. When some of these men stood up for something we believe in, we think that they must share other of our values. They don’t. Put simply, no one with any integrity would be caught dead working for this Administration. George Bush is the worst President in our history. They can’t have worked for him without noticing this or without buying into much of what this worst of all Presidents represents. They signed off on and enabled much that was deeply antithetical to the Constitution because they thought it could be finessed as a matter of law. They aren’t heroes. They just aren’t quite as bad as Gonzales, Addington, and Yoo.

Mary says:

It is a part of what angered me so about the programs to start with - none of the lawyers or agency heads (be it Ashcroft, Tenet, Hayden, Thompson, Yoo, Bybee, etc.) seemed to have any care or concern for protecting the people they involved in the process. They did help create it and you can see how strongly they have an “our people” v. “outsiders” approach. A fine thing in a friendship and a deplorable thing in a prosecutor or agent of democratic government. …… People who were willing to continue in all this without coming truthfully and openly and apologetically forward aren’t people who were trying to do the right thing. Going to bed every night knowing the horrors you were actively involved in visiting upon all kinds of people, including children, including kidnapped children used for torture leverage — and never ever ever ever ever ever backing away from it — good people don’t do that.

EXACTLY! THANK YOU. It absolutely blows my mind when people see one thing one of these clucks has said that happens to temporarily sound reasonable, and all of a sudden they are “heroes”. Remember all the folks at FDL exclaiming “Comey for Attorney General!”; or, more recently, the folks thinking we owe some debt of gratitude to Doughboy Goldsmith for writing his freaking book? Where were all these people when it counted? They were removing our rights, reading our emails and listening to our calls; thats where. Oh, and kidnapping and torturing people extrajudicially. The truth about this gang of four, Ashcroft, Comey, Goldsmith and Philbin, was always plain to see. They made a stink during the hospital visit situation, but the “program” blithely continued on with a signature from Gonzales, which anybody with a brain knew was insufficient, and these fine folks did nothing. Nuff said; they are not good people and hopefully everybody can see that now.

Mary - I believe the concept you are so eloquently and correctly explaining and describing with the boat scenario etc. is formally known as justification. There are times when a certain act is technically illegal, but you may be justified in doing it anyway. The easiest example is it is illegal to kill another, but if you are saving your own life, or that of another, it is justified. Self defense is a justification defense, as would be the temporary use of the boat due to exigent circumstances.

I am impressed with the remarks above. I never see any reference to the 1995 law CALEA in connection with the proposal to immunize the phone companies against lawsuits. CALEA compelled the network service providers to provide physical access for wiretaps and such provided they were shown something that said this was legal. CALEA does not specify the details of how the govt. should qualify its request. The situation has been greatly complicated with the advent of digital networks and packet switching. It is said that FBI and others have demanded that CALEA apply to all such networks including VoIP and email on the internet. Presumably the NSA persuaded the phone companies that what they were asking for WAS legal, although Joe Nacchio is said to have refused on advice of counsel (and he says his trial and conviction recently was retribution). So were the NSA requests legal? Presumably the govt would say "yes" in which case, Under CALEA, how can the phone companies be sued? and why would the President make such an issue of the immunization if the orders were lawful and company cooperation was compelled by CALEA?